Coons v. Pritchard ex rel. Pritchard

*386ON REHEARING.

Ellis, J.

A petition for rehearing was filed in this cause. It is urged by counsel for defendant in error that the third assignment of error was not well considered. Counsel say that the court overlooked and did not consider the fact that the witness Valentine, to whom the statements of Pritchard were supposed to have been made, was fully questioned and testified extensively and completely upon alleged admissions and the entire conversation between himself and the plaintiff on the way to the hospital after the injury. As to whether the court considered Valentine’s testimony as to the plaintiff’s admissions, we direct counsel’s attention to the following language in the opinion, which language counsel seem to have overlooked: “The fact that Valentine testified later to statements made by the plaintiff as to his knowledge of the danger that he had ‘made a mistake,’ or ‘had made a foolish move’ and the like, does not cure the error committed in excluding the question.” This court held that the question propounded to Pritchard, the plaintiff, by defendants’ counsel, and quoted in the opinion was a proper question and its exclusion reversible error, because the question sought to elicit from the plaintiff an admission to discredit his claim by showing a prior inconsistent utterance. The plaintiff by his declaration and in his testimony asserted that he was ignorant of the danger of his employment, this ignorance was a material element in the case made by the declaration as well as the one made by the plaintiff’s evidence. The question sought to elicit an admission from the plaintiff showing or tending *387to show that he was, at the time of the injury, not ignorant of the dangers of his employment; an admission inconsistent with his claim as presented in his declaration and testimony. Such an admission would have been destructive of his case; it would have tended to show that his case as presented by the declaration rested upon a false premise; that his allegations of ignorance were a mere pretentse and after-thought, assumed only for the purpose of recovering damages. The defendants had a right to the acknowledgement of this admission from the lips of the plaintiff, if the admission was ever made, and its exclusion was error. Counsel’s objection to the question, as the record shows, was that the plaintiff being an infant, could not make an admission contrary to his interests, and in their brief they say that if error was committed, it was cured by the testimony of Valentine. In the petition for rehearing counsel insist that the question was saked “for the sole purpose of laying a foundation for introducing the very testimony of Valentine, which in fact was introduced later, without objection.” With the view of the law. as expressed by plaintiff’s counsel on this point, the court does not agree, and so announced in the opinion, to which counsel are referred.

The next point urged in the petition for rehearing is, that the conclusion the court reached on the question of variance, was erroneous. The question was raised by a motion to strike the testimony of the witness Robert B. Pritchard, the plaintiff, “in regard to the actual happening of the accident, upon the ground that it is a variance from the allegations of both counts of the declaration.” The testimony of the witness as to the actual happening *388of the injury as the same is quoted in the opinion is correctly quoted from the record. The witness said “I pressed the wrench against the back side of the belt with my hand around the side.” He may have intended to say that it was his arm which was around the side of the front belt, and perhaps that statement would have been more accurate, as counsel in their petition insist. But the record shows that no such statement was made by the witness.

We are still of the opinion, that the declaration shows the plaintiff to have appreciated the danger of bringing his hand in contact with the moving belt, and that “according to his testimony he seemed(to be doing the very thing which according to the declaration he tried to avoid, and of which he realized the danger.”

It is asserted in the petition that: “The belt around the side of which he (plaintiff) had his hand was the front part of the belt, leaving the machine, and was not the part of the belt which threw his arm into the machine.” The court understood from the record and the photographs of the machine, that the belt which operated it connected the machine with a revolving shaft overhead. That the power necessary to operate the machine was transmitted by means of the belt to a pulley connected with the machine; that the far side of the loop made by the belt came down to the machine and the side nearer the operator as he stood before the machine moved upward; that it was the far side of the belt loop which stood on edge and would not lie flat on the wheel. The declaration alleges that the operation of the machine required the operator to use a stick or similar instrument to “keep the belt on said wheel and make the same lie flat while rapidly turning,” and that *389the injury occurred while the plaintiff was operating the machine and using, “for the purpose of controlling said belt on said wheel as aforesaid, a large wrench, thereby avoiding touching said belt with his hands.” His testimony shows that the injury occurred while he was trying to shift the belt from the idle pulley to the wheel or main pulley, and in doing so pressed the wrench against the back side of the belt with his hand ¿round the side.

We think that what the witness said as to how the injury happened materially varied from what he had previously alleged in his declaration! The plaintiff had with great particularity and minuteness of details described in the declaration the tort and the means by which it was committed, he was therefore held to a corresponding degree of particularity in his proof necessary to sustain those allegations, his testimony was, we think, substantially variant from the allegations in his declaration,, and failed to sustain them. See Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71; Lofton v. Jacksonville Electric Co., 61 Fla. 293, 54 South. Rep. 959.

As to the ninth assignment of error: The declaration describes specifically, almost elaborately, the result of the injury and the surgical operations performed, and concludes the paragraph in the following words: “The said arm remained and still is, and always will be stiff and weak, and to a large extent useless and impairedDr. Turk, a witness for the plaintiff, said: “I think the arm is permanently injured, though another operation on the joint to remove a possible excess of new bone which forms after a fracture, might result in some further action in the elbow joint. Judging from previous similar operations, we have always obtained a certain amount of improvement after removing the excess of new bone growth *390which always forms after a fracture.” In assessing the damages in this case the jury were required to ascertain from the evidence submitted to what extent the plaintiff’s arm was and would continue to be useless and impaired. If there was reasonable .ground to 'believe that a surgical operation would increase the degree of motion in the plaintiff’s elbow joint, thereby increasing the usefulness of his arm, such fact should have been considered by the jury in assessing the amount of the recovery, as should the probable expense of such an operation. Where persons sustain injuries like the one sustained by the plaintiff, the extent of the injury, the degree to which the limb is rendered useless, • determines the extent of his damage. A surgical operation might not restore a wholly useless limb to its former degree of efficiency and usefulness, but the operation might restore to a degree its usefulness, and to that extent the operation would effect a cure and the damage which the plaintiff might have sustained without the operation be in that proportion reduced.

Petition denied.

Taylor, C. J., and Shackleford, Cockrell, and Whitfield, JJ., concur.